September 2014
“We must do away with all newspapers. A revolution cannot be accomplished with
freedom of the press.” – Ernesto “Che” Guevara.
When I first started writing about campus free speech issues for Town Hall in
2003, I complained that most college administrators were ignorant of the
constitution. One of my readers, Jim Collins from Colorado Springs, was quick to
correct me. Jim pointed out that college administrators aren’t just ignorant of
the First Amendment. Instead, he insisted that they are hostile towards it. Time
has shown just how right he was. In fact, administrative hostility towards the
First Amendment has gotten worse since 2003.
Unfortunately, this hostility has spread from the administration to the faculty.
In fact, just a few years ago, Dick Veit, our former faculty senate president
here at UNCW, joined an administrative effort to punish faculty who dared to
criticize the administration in opinion columns written in off-campus forums.
This was done under the guise of promoting “collegiality.”
The collegiality pretext has been used at other universities. It was first
pushed at UNCW by then-Chancellor Rosemary DePaolo. She actually admitted that
it was intended to punish me for publicly criticizing the university – for
various reasons such as excessive spending on diversity and exorbitantly high
salaries for university administrators. Internal emails confirmed that
collegiality was being proposed as a device to explicitly punish my
constitutionally protected speech.
It is noteworthy that these emails also revealed that Dick Veit was working with
the administration to put the collegiality measure in place. Fortunately, when
the measure came up for a vote, the junior faculty rebelled and voted it down.
Veit later left the senate in frustration over his failed effort to supplement
“teaching, research, and service” with a broad “collegiality” factor, which
could be used to veto the United States Constitution.
Unfortunately, there are a lot other Dick Veits working in academia. Enter
Gabriel Lugo who is a fan of Ernesto “Che” Guevara and is the current faculty
senate president at my university. Lugo recently circulated false information on
the faculty senate mailing list, which, unfortunately, may embolden senior
faculty and administrators inclined to punish junior faculty for speaking out on
matters of public concern. This requires a little background information. Please
keep reading.
Last year, as our university began to consider revamping promotion polices –
like the ones in place when I was denied promotion – Lugo circulated a memo to
faculty giving guidelines on academic freedom as it relates to the promotion
process. He urged faculty to read two Supreme Court cases, which he claimed were
relevant to the issue of free speech. One of those cases was Garcetti v.
Ceballos (2006).
In Garcetti, Justice Kennedy wrote a majority opinion, which modified a previous
rule regarding free speech and public employment. Previously, the Court said
that public employees have a First Amendment right to speak out on matters of
public concern without facing retaliation. Garcetti modified the rule saying
that this right did not extend to public employees who spoke out on matters of
public concern that were also a part of their “official duties.”
The rule arose in the case of a public employee, Ceballos, who happened to be a
district attorney. But some, including dissenting Justice David Souter, worried
that the rule would be applied to professors who have a special role in the
public square. In other words, the case was seen as a potential threat to
academic freedom. For this reason, Justice Kennedy added a paragraph to the
opinion noting that the rule in Garcetti did not specifically address the role
of professors. Kennedy, writing for the majority, stated “We need not … decide
whether the analysis we conduct today would apply in the same manner to a case
involving speech related to scholarship or teaching.”
Enter UNCW. In my recent lawsuit challenging my 2006 promotion denial, the
university tried to apply Garcetti to my speech. They specifically argued that
the mere mention of the column on my promotion application transformed my
private speech into an official duty thus stripping the views expressed in the
column of First Amendment protection. In other words, the university claimed a
right to punish the speech by denying my promotion.
Gabriel Lugo and the faculty senate were silent while this epic First Amendment
battle was brewing. That battle was settled in a 2011 unanimous decision in my
favor. In that decision, the 4th Circuit specifically ruled that the Garcetti
“official duties” distinction does not apply to university professors. It was a
monumental victory for academic freedom.
In January of 2014, the 9th Circuit relied on Adams v. UNCW. They refused to
allow a university to apply Garcetti in order to justify suppressing another
professor’s speech. That victory (in a case originating in Washington State)
shows that our victory in the 4th Circuit is now spreading across the entire
country. It seems everyone is learning from Adams v. UNCW – except for UNCW
Faculty Senate President Gabriel Lugo.
Lugo’s insistence that Garcetti still applies to academic promotion cases
(remember, he said so in a recent memo) raises some interesting questions. In
fact, I have two questions for Lugo and the faculty senate:
Those are really the only two options. Lugo is either a) completely uninformed
about, or b) actively opposed to, academic freedom. Of course, I have my own
constitutionally protected opinion of where Lugo, the Peruvian fan of Che
Guevara, stands. (Hint: Read the quote at the top of the column).
This battle for campus free speech is not a battle against ignorance of our
rights. It is a battle against hostility towards our rights. All of this talk
about collegiality is merely intellectual cowardice meant to shield tenured
hypocrites from well-deserved criticism.
Townhall.com, April 7, 2014.
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